FEDERAL COURT OF AUSTRALIA

CHW16 v Minister for Immigration and Border Protection [2017] FCA 762

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the applicant’s judicial review application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). A decision under r 44.12 is interlocutory, so leave is required to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A).

Background

2    The applicant is a citizen of Bangladesh who arrived in Australia by boat on 26 April 2013 and applied for a protection visa on 1 September 2013. A delegate of the first respondent refused his protection visa application on 2 December 2014, a decision of which he sought review before the Tribunal. The delegate’s decision was affirmed by the Tribunal on 22 July 2016 and an application for review of that decision was dismissed by the primary judge on 2 February 2017.

The Tribunal proceeding

3    The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm.

4    In summary, the applicant claimed to meet both sets of criteria on the basis that his involvement in the Bangladesh Nationalist Party (BNP) made him a target of supporters of the rival (and ruling) party, the Awami League. He also claimed to fear harm if returned to Bangladesh on the basis of being a failed asylum seeker.

5    The applicant appeared at the hearing before the Tribunal on 26 April 2016 and gave evidence and made submissions, with the assistance of an interpreter and his registered migration agent. Pre-hearing and post-hearing submissions were filed in the Tribunal on the applicant’s behalf.

6    In determining the applicant’s claims, the Tribunal made comprehensive adverse credibility findings. Those findings were reached after the Tribunal put to the applicant various matters in accordance with s 424AA of the Act. In summary, the Tribunal found aspects of the applicant’s evidence to be “vague, lacking in detail, evasive, contradictory and unconvincing”, that he had made new claims throughout the hearing and that there were “significant inconsistencies” in his evidence.

7    Relevantly, the Tribunal’s adverse credibility findings included findings:

(1)    with respect to the applicant’s involvement with the BNP (Tribunal’s reasons at [21]-[24], [33], [76]), namely that:

(a)    there were inconsistencies between the accounts of his involvement given in his visa application, in his interview with the first respondent’s department and before the Tribunal: Tribunal’s reasons at [21]-[24], [32];

(b)    his evidence as to the degree of his involvement with the BNP changed over time: Tribunal reasons at [24];

(c)    he demonstrated limited knowledge of the symbols and policies of the BNP: Tribunal’s reasons at [26]-[31];

(d)    there were inconsistencies in his evidence as to his intention to remain involved in BNP politics: [33]; and

(2)    with respect to the threats faced by the applicant if he returned to Bangladesh ([78]-[82]), namely that:

(a)    it was unlikely that the applicant would now be perceived as a BNP supporter, given that his evidence to the Tribunal was that his last involvement with the BNP was five-and-a-half years before he left Bangladesh in 2013: Tribunal’s reasons at [25];

(b)    there were inconsistencies between the account given in visa application and his evidence to Tribunal with respect to why he left his village: Tribunal’s reasons at [35]-[38];

(c)    the applicant raised claims, which the Tribunal found to be implausible and which had not previously been made in his visa application, to the effect that the applicant was of interest to Bangladeshi police (including in connection with a “false” case): Tribunal’s reasons at [39]-[43];

(d)    there were inconsistencies and/or contradictions in the applicant’s evidence concerning the circumstances of and motivation for his departure from Bangladesh (specifically, inconsistencies between the accounts given in his visa application, at his interview with the first respondent’s department and to the Tribunal): Tribunal’s reasons at [48]-[57];

(e)    the applicant’s account of the incidents of harassment he faced from members or associates of the Awami League was implausible because the incidents allegedly occurred 10 years after he ceased being actively involved with the BNP: Tribunal’s reasons at [58]-[60]; and

(f)    the Tribunal found implausible, incoherent and unconvincing the applicant’s evidence concerning threats directed by the Awami League to his brother, which, the applicant said, raised the perception of the applicant as being a member of a “BNP family”: Tribunal’s reasons at [61]-66].

8    The Tribunal also rejected his claim to fear harm upon return to Bangladesh as a failed asylum seeker on the basis of the applicant’s evidence that he had not supported or had contact with the BNP since coming to Australia: Tribunal’s reasons at [69]. In doing so, the Tribunal had regard to country information produced by the Department of Foreign Affairs and Trade, which stated that returnees to Bangladesh are not subject to adverse attention from authorities unless they are high-profile individuals and have engaged in political activities outside Bangladesh.

9    On the basis of its extensive adverse credibility findings, the Tribunal held that the applicant was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining a protection visa: Tribunal’s reasons at [71]. Those factual findings underpinned the Tribunal’s rejection of the applicant’s claims under both s 36(2)(a) (Tribunal reasons at [85]) and (aa) (Tribunal’s reasons at [86]-[89]).

The FCCA proceeding

10    The applicant sought judicial review of the Tribunal’s decision in the FCCA. The applicant’s grounds of review before the FCCA were as follow:

1.     In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

2.     The tribunal failed to assess my harm on the basis of my claims.

3.     The tribunal failed to assess the present situation in Bangladesh since I left.

4.     The tribunal decision effected by the natural justice.

5.     The tribunal made decision without any verification of my genuine documentary evidence and statement.

6.     The tribunal decision is identical or very similar of the Departmental decision.

[Errors in the original.]

11    The primary judge characterised the applicant’s claims as being directed to the Tribunal’s assessment of the applicant’s credibility, procedural fairness (including bias), the choice and selection of country information and the applicant’s claims in respect of the complementary protection criteria. Before assessing each claim in turn, the primary judge noted that although “expressed in language of legal claims, the substance of the [applicant’s] complaints is largely concerned with the merits of the [Tribunal’s] decision”: CHW16 v Minister for Immigration and Border Protection [2017] FCCA 180 at [22].

12    In dismissing the application, the primary judge relevantly held that:

(1)    the Tribunal’s adverse credibility findings were open on the material before it and nothing in the Tribunal’s reasons suggest any error in its approach: CHW16 v Minister for Immigration and Border Protection [2017] FCCA 180 at [23]-[26];

(2)    the Tribunal complied with its procedural fairness obligations in Pt 7 of the Act, put information to the applicant orally in accordance with s 424AA of the Act and the material put to the applicant was not required to be put to him for the purposes of s 424A: CHW16 v Minister for Immigration and Border Protection [2017] FCCA 180 at [27-[30];

(3)    in the absence of a properly particularised bias claim or evidence (including the transcript of the Tribunal hearing) to support such a claim, the applicant’s bias claim was “no more than an expression of the applicant’s disagreement with the Tribunal’s decision”: CHW16 v Minister for Immigration and Border Protection [2017] FCCA 180 at [31];

(4)    it was open to the Tribunal to have regard to the DFAT country information and to prefer it to the applicant’s own account: CHW16 v Minister for Immigration and Border Protection [2017] FCCA 180 at [32];

(5)    the Tribunal did not fail to consider the applicant’s complementary protection claim because in doing so it relied on factual findings in respect of the applicant’s refugee claim: CHW16 v Minister for Immigration and Border Protection [2017] FCCA 180 at [33]-[35].

The application to this Court

13    In this Court, the applicant’s proposed grounds of appeal are contained in the following documents: an application for leave to appeal filed on 15 February 2017; an affidavit in support of the application, also filed on 15 February 2017; a draft notice of appeal annexed to the affidavit filed on 15 February 2017; and written submissions filed by the applicant on 12 May 2017.

14    The application for leave to appeal filed on 15 February 2017 states the grounds of the application as follows:

1.    Hon Judge Driver of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be a refugee and fear of harm test for the provision of the Complementary Protection.

2.    Hon. Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find difference between a Reasonable Relocation and Unreasonable Relocation. The Tribunal failed to understand the geographical situation of Bangladesh and concluded that I will not suffer harm if I go to other areas which is not feasible.

3.    I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh where thousands of BNP workers are arrested recently and harassed by the Awami League supporters and present governed Authority. In assessing danger to me, the Tribunal undermined the danger I will face if I am compelled to return Bangladesh as returned Asylum seeker.

(Errors in original.)

15    The affidavit filed in support of the application for leave to appeal states that the primary judge erred when his Honour:

(1)    dismissed the application for judicial review “without giving any reasonable grounds”;

(2)    “failed to take…into account all reasonable grounds…”;

(3)    denied the applicant procedural fairness; and

(4)    failed to identify the error made by the Tribunal.

16    The draft notice of appeal annexed to the affidavit in support of the application states four proposed grounds of appeal:

1.    The judge of the Federal Circuit Court in his honourable judgment delivered on the 02 February 2017 failed error of law and relief under the judiciary Act. He failed to find that the Administrate Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.

2.    Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find difference between a reasonable relocation and unreasonable relocation. The Tribunal failed to understand the geographic situation of country like overpopulated country like Bangladesh and concluded that I will not suffer from any harm if I go to relocated, which is not feasible.

3.    I was denied procedural fairness when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of Bangladesh Nationalist party(BNP) workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government Authority. In assessing danger to me, the Tribunal undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.

4.    Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 22 July 2016 in deciding my protection visa merit review application. Thus, the procedures required by the act or regulations to be observed, in connection with the making of the decision were not observed.

(Errors in original.)

17    The applicant’s written submissions relied upon the grounds otherwise stated in the application for leave to appeal and the draft notice appeal, as well as two further grounds, namely, that the Tribunal’s decision was unreasonable and affected by bias.

18    The applicant also purported to amend his application, by, on 12 May 2015, filing a document headed “GROUNDS AND PARTICULARS OF AMMEND APPLICATION”. That document impugns the delegate’s decision on a new basis, being, in essence, that through these proceedings the applicant has discovered that he applied for the incorrect class of visa when he lodged his application with the first respondent on 8 September 2013. The applicant says that he applied for a Protection (Class XA) visa, when he should have applied for a Temporary Protection Visa (Class XD) Subclass 785. In oral submission, the applicant elaborated that he applied for Protection Visa Class XA subclass 866 when he should have applied for Temporary Protection Visa Class XD subclass 785. Accordingly, the applicant seeks orders of this Court directing (or “advising”, to use the applicant’s term) the delegate to allow the applicant to re-lodge his visa application, this time with what he considers to be the correct class.

Consideration

19    Many of the applicant’s claims are directed to the legality of the Tribunal’s decision. For the benefit of the applicant, I have understood these claims to be directed ultimately to the primary judge’s failure to identify relevant errors in the Tribunal’s reasons.

20    The various documents filed by the applicant in this proceeding, read together, identify six proposed grounds of appeal:

(1)    a claim that the Tribunal applied the wrong test and/or conflated the tests for s 36(2)(a) and (aa) (application for leave to appeal, ground 1);

(2)    a claim directed to the Tribunal’s supposed relocation findings to the effect that the Tribunal did not “take up and separately deal with the factual issues” (application for leave to appeal, ground 2; draft notice of appeal, ground 2);

(3)    a claim that the applicant was denied procedural fairness (application for leave to appeal ground 3; draft notice of appeal, grounds 3 and 4; applicant’s written submissions, page 5);

(4)    a “no evidence” claim (draft notice of appeal, ground 1);

(5)    a claim that the Tribunal’s decision was “unreasonable” (applicant’s written submissions, page 4); and

(6)    the purported further ground concerning the relevant class of visa.

21    The affidavit filed in support of the application takes the applicant’s case no further than the six grounds stated above.

22    In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances, the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

23    For the reasons that follow, leave will be refused.

The tests for s 36(2)(a) and (aa)

24    By ground 1 of the application for leave to appeal, the applicant appears to claim that the Tribunal erred by conflating the tests for s 36(2)(a) and (aa). That is not so. Having considered the question of whether Australia owed the applicant protection obligations under the Refugee Convention at [19]-[85], the Tribunal turned separately (at [86]-[89]) to consider whether there was a real risk that the applicant would suffer significant harm if removed from Australia (for the purposes of s 36(2)(aa)). That the same factual findings were the premise of each assessment does not manifest error.

The Tribunal’s relocation findings

25    The applicant claims that the primary judge erred by not “tak[ing] up and separately deal[ing] with the factual issues” and that the Tribunal “failed to find difference between a Reasonable Relocation and Unreasonable Relocation”. At its highest, this ground is a claim that the primary judge erred by failing to identify error in the Tribunal’s relocation findings. Even at its highest, the ground is irrelevant to the application. Having rejected the applicant’s claims to fear harm, on the basis of adverse credibility findings, no issue of relocation arose for the Tribunal’s consideration.

Procedural fairness

26    The applicant’s written submissions state that the applicant relies on the transcript of the hearing before the Tribunal to establish the alleged procedural irregularity. However, as the first respondent identified, that transcript was not in evidence before the primary judge and it is not in evidence in this Court.

27    The applicant also seeks to support his procedural fairness claim by pointing to the Tribunal’s reference to country information produced by the Department of Foreign Affairs and Trade. In particular, the applicant’s written submissions claim that the Tribunal:

…relied upon country information and inconsistencies in the [applicant’s] claims set out in the protection visa application and the claims made before the Tribunal as part of the reasons for affirming the decision under review. It failed to put those inconsistencies in writing to the appellant for comment: NAZY v MIMIA [2005] FCA 744 (23 June 2005) and MIMIA v AL Shammy (2001) 110 FCR 27 (24 July 2001).

28    The applicant’s unparticularised submission that the Tribunal was required to put certain inconsistencies to the applicant in writing is without substance. The Tribunal put various matters to the applicant orally, including its concerns as to his credibility and inconsistencies in his evidence, in compliance with s 424AA of the Act. Moreover, as the primary judge held, such “inconsistencies” were not “information” for the purposes of s 424A of the Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18]. Nor did the Tribunal contravene s 424A because it relied on country information: VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [28] per Moore J, [50] per Kenny J and [71] per Downes J and the cases there cited.

29    As the primary judge observed, the applicant was invited to attend a hearing, which he did, at which the applicant’s credibility was discussed in detail. The applicant’s representative made post-hearing submissions on the applicant’s credibility and that issue had been central to the delegate’s decision. In those circumstances, and in the absence of the transcript of the Tribunal hearing being in evidence in this Court, I am unable to conclude that the Tribunal did otherwise than comply with its procedural obligations under Pt 7 of the Act.

30    In the absence of the transcript of the hearing before the Tribunal being in evidence, I am also unable to conclude that the Tribunal was affected by bias. A claim of bias is a serious allegation that must be made good by way of evidence and there is nothing to support such a claim in the material before this Court.

“No evidence”

31    The applicant also claims the Tribunal erred because it did not find any evidence in relation to the applicant’s claims.

32    This ground could only succeed if the applicant established that there was no evidence at all to support the Tribunal’s findings: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Even a “slight” evidentiary basis will defeat a “no evidence” challenge: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19]; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]–[12]; and SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232. However, finding a claim to be not made out for want of evidence is not the same as making a finding premised on no evidence.

33    In the context of this proceeding, having found the applicant’s evidence not to be credible, it was open to the Tribunal to disregard it and, in the absence of other evidence in support of the claim, to find that the criteria in s 36(2)(a) and (aa) were not satisfied. The Tribunal was not required to possess rebutting evidence before holding that a particular factual assertion was not made out: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65]; citing Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; 34 ALD 347.

Unreasonableness

34    The applicant claims that the Tribunal’s decision was “unreasonable in the Eynesbury sense”. This claim is largely unparticularised. To the extent that it is, the claim seems to concern the Tribunal’s findings as to inconsistencies in the applicant’s evidence and its rejection of his claim to be a target of the Awami League.

35    The first respondent agrees that “unreasonable in the Eynesbury sense” should be understood as a reference to the standard attributed to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

36    The principles informing judicial review for unreasonableness in the legal sense were, more recently, summarised by the Full Court in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33.

37    Those principles relevantly include that:

(1)    There is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word.

(2)    There is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness.

(3)    The standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker.

(4)    The legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

(5)    In determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions.

(6)    Legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases.

(7)    The concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error.

(8)    Where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification.

(Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [37]-[39]; citing Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton); and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh))

38    Legal unreasonableness may encompass decisions that are arbitrary, capricious, without “common sense” or that lack an evident and intelligible justification: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [41]; citing Li (2013) 249 CLR 332 at [28], [76], [105]; and Singh (2014) 231 FCR 437 at [44].

39    However, as Allsop CJ cautioned in Stretton [2016] FCAFC 11; 237 FCR 1 at [2]:

…it is unhelpful to approach the task [of identifying legal unreasonableness] by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.

These words and phrases express a rule that is directed to the limits of the exercise of power, and, because of that function, are necessarily expressed as abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts.

40    Ultimately, as Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

41    What all of these statements of principle make clear is that determination of legal unreasonableness is a fact- and context-dependent exercise, one which is difficult to accomplish in the absence of detailed particulars. In the circumstances, I am unable to identify any respect in which the decision of the Tribunal could be characterised as unreasonable, such that the primary judge’s failure to identify the error would be appellable. To the contrary, the Tribunal’s factual findings were plainly open on the evidence before it and it gave cogent reasons for not accepting the applicant’s claims.

The visa class ground

42    The applicant’s purported amendment to his application is misconceived. This Court has no power to review the merits of the delegate’s decision. To the extent that the applicant’s purported amended application claims that there was some negligence on the part of his migration agent or the department of the first respondent, the first respondent submits that that claim must fail for the following reasons:

(1)    First, the claim was not raised before the primary judge and leave to raise it now should be refused for lack of merit.

(2)    Secondly, to the extent that negligence is claimed, such a claim would be a separate cause of action, which would not arise on judicial review of a decision by the Tribunal.

(3)    Thirdly, if the claim is understood as an allegation of fraud of the kind the subject of the High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, there is no evidence before this Court of such fraud, let alone fraud rising to the level sufficient to cause the Tribunal’s jurisdiction to miscarry.

(4)    Fourthly, the temporary protection visa in respect of which the applicant seeks to make a further application was introduced on 16 December 2014, 15 months after the applicant lodged his visa application (in September 2013): Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), s 2 (Column 1, item 3) and Sch 2, item 5.

(5)    Fifthly, the criteria for the relevant temporary and permanent protection visas are the same, being satisfaction of s 36 of the Act. Accordingly, the dispositive issue before the Tribunal, being whether s 36(2)(a) or (aa) were satisfied, would have been the same irrespective of whether the applicant had applied for the temporary or permanent form of the visa.

43    I accept those submissions, the fourth of which is sufficient to dispense with the applicant’s purported further ground of appeal.

Conclusion

44    For the reasons given above, the application will be dismissed. The applicant should pay the first respondent’s costs, to be agreed or assessed.

Associate:

Dated:    7 July 2017